Wednesday, June 22, 2016

Universal Background Checks are Unenforceable and Easily Defeated at Trial

As you may or may not know, we are fighting this very fight
in Nevada. Ballot
Question 1, a ballot initiative that was funded by Bloomberg's Everytown
and MDA organizations along with the local liberal shrews and limousine
liberals will be on the November ballot. Basically the idea is to force you to
go to a dealer to have a background check done via NICS before transferring a
firearm, with limited exceptions. In Nevada, normally DPS does the background
checks for dealers and charges $25 per transaction. I'm not sure what the
reasoning is for choosing to use NICS for the private party sales, but that
will add another layer of confusion for dealers who have never used it, I'm
sure.

Here is the issue that I see with these
"universal" background checks. First, I will talk about enforcement. I
want you to keep in mind that you are innocent until proven guilty in a court
of law. This means that it is on the prosecution and by extension, the police,
to prove that you have committed a crime. What would be the crime they would be
enforcing? The crime would be failing to obtain a background check. The police
have to have probable cause that you did NOT do something in order to arrest you
for failing to get a background check.

Then the prosecutor has to prove beyond a reasonable doubt
that you haven't completed a background check. It's difficult enough proving
that you actually did do something let alone trying to prove beyond a reasonable
doubt that you did NOT do something. Keeping in mind that you are innocent
until proven guilty, you don't have to tell them what FFL you used to get a
background check. You don't have to tell them what date you transferred the
firearm. You are free to exercise your 5th Amendment right against
self-incrimination. The entire onus of the investigation lies with law
enforcement and the prosecution.

For example, Nevada currently has approximately 740 licensed
FFLs. There are 365 days in a year. Remember that FFLs keep their records in
their "bound book" per ATF regulations. Some may have converted to
electronic bound books if issued a variance by the ATF, but this is not yet the
norm. That means someone has to physically go and paw through their bound book
and possibly the 4473 forms at each dealer to prove that a record does not
exist. So they would have to reasonably ensure that they inspect every record
at every dealer.

If law enforcement/prosecution do not check every dealer or
check every record, they leave the door open for the defense to create a
reasonable doubt that the one record at the one dealer that they did not
inspect could be the form proving that the background check was completed. Remember
that by federal law, the NICS system may not be used to create a registration
of firearms or gun owners. This means that under federal law the identifying
records on their end must be destroyed after the background check is completed.
The man-hours required to attempt to prosecute a single violation of this law
would be ridiculously prohibitive.

Second, I will talk about the background checks as they
apply to prohibited persons. It is unconstitutional to require a prohibited
person to present himself for a background check. Yes, I'm serious. There was a
Supreme Court decision in 1968, Haynes v. UnitedStates. The reader's digest is that a man who was a convicted felon was
caught in possession of an unregistered NFA firearm. He successfully argued
that requiring him to register the NFA firearm is akin to forcing him to make
an open admission to the government that he is a felon in possession of a
firearm. Remember that 5th Amendment right against self-incrimination? The
courts agreed with him that the law cannot compel him to perform an action that
would amount to confessing to committing a crime.

While the Supreme Court did not invalidate the law requiring
the registration of NFA firearms nor did they invalidate the prohibition on
felons possessing firearms, they agreed that the law requiring registration
could not be enforced against convicted felons. How hard do you think it would
be for a defense lawyer to make this same argument for his client previously
convicted of a disqualifying offense (domestic violence, felony, etc), subject
to a protection order or adjudicated mentally ill? These are the very people
that this law was intended to keep guns away from and they are already exempt
from the requirements of this law!

I believe this law was written to intentionally fail. The
left wants it to be unenforceable so it opens the door to push for registration.
As the law abiding citizens go for background checks at dealers, their updated
4473 forms will help create more accurate, useful records to show who owns
which firearms as of a certain date. Then the forms can be pulled to create the
registration database. The next step will probably be confiscation of certain
types of firearms. Think it can't happen? California and Connecticut have
already been reported to be tracking down owners of certain types of firearms. It's
not hard to imagine that being stretched into a nationwide system.

1 comment:

You have to remember that liberals generally don't think too far ahead, so it's unlikely they wrote it to intentionally fail, but they'll be more than happy to use the failure to push another piece of BS.

What will happen is over zealous idiots in the law community will set up Face to Face transactions and attempt to get someone to agree to NOT do the background check, which will result in an arrest. The DA then gets to parade around like a combination of an inbred turkey crossed with an inbred peacock about how he's busting all these people.